March, R (on the application of) v Secretary of State for Health

A public law decision may be quashed where the decision-maker’s published reasons reveal a material error of fact in the reasoning process. The claimant must establish the error and show that it was material, in the sense that a different decision might have been made without it.

Where a minister explains or elaborates upon a government decision in Parliament, the court may consider the statement as evidence of the reasoning process. It must assess the statement in its context and must not review the adequacy or accuracy of parliamentary proceedings. The court may scrutinise the reasoning but cannot substitute its view on the allocation of public resources.

The claimant was a haemophiliac infected with hepatitis C through contaminated NHS blood products. The government had responded to the Archer Inquiry by increasing payments but rejected a recommendation that payments should be at least equivalent to those available in Ireland.

The judicial review challenged the government’s reasoning, particularly ministerial answers given on 23 June and 1 July 2009. The claimant alleged that the government wrongly believed that the Irish payments were introduced because fault had been established and that this error infected the decision to reject comparability with Ireland.

The central issue was whether the government’s publicly stated reasons could withstand conventional public law scrutiny.

1. The claim was allowed. The decision not to accept recommendation 6(h) of the Archer Report was quashed. The court gave no direction as to the decision to be reached on reconsideration.
2. The parties agreed that, having chosen to respond to the non-statutory Archer Report and announce decisions, the government’s decisions and reasons were amenable to conventional judicial review. A decision may be quashed where its published reasons reveal a material error of fact. The claimant had to show both an error and materiality, namely that a different decision might have been made without the error.
3. The allocation of public resources remained a matter for the government. The court was not reviewing the merits of the policy decision or the amount which the government could afford to pay. The government was entitled to take account of advice and its assessment of fault or civil liability if it considered that relevant.
4. Parliamentary answers could be considered where they explained or elaborated the published reasons. Their significance depended on the circumstances, including whether the answer was spontaneous or prepared and whether it was given in a topic-specific debate. The court was concerned only with the decision under review.
5. The answer given on 23 June 2009 was not treated as material, because it was spontaneous and ambiguous. The answer given on 1 July 2009 was different. In a prepared, topic-specific debate, the minister wrongly stated that the Irish government decided to make significant payments as a result of findings of fault. The evidence showed that significant ex gratia and compensatory payments had begun before the relevant tribunal reported.
6. The minister also treated ex gratia payments and compensation as mutually exclusive. That was wrong: a payment could be made ex gratia, without admission or proof of liability, while still being compensatory in amount or purpose.
7. The error was material. The supposed distinction between the Irish and United Kingdom schemes had led the government not to consider recommendation 6(h) in detail or investigate it fully. A correct understanding of the compassionate and compensatory basis of the Irish scheme might have produced a different decision.

The judgment records that permission was initially dealt with by Ouseley J on 7 December 2009, who directed a rolled-up hearing because of the alleged delay. The Administrative Court subsequently granted permission and determined the substantive judicial review claim.